Federal Register of Legislation - Australian Government

Primary content

A Bill for an Act to amend the Environment Protection and Biodiversity Conservation Act 1999, and for related purposes
Administered by: Environment
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 15 May 2014
Introduced HR 14 May 2014

2014

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (COST RECOVERY) BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated by authority of the Minister for the Environment, the Hon Greg Hunt MP)

 

 

 

 

 

ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION AMENDMENT (COST RECOVERY) BILL 2014

OUTLINE

The Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Bill 2014 (the Bill) amends the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) to allow for cost recovery for regulatory activities under the EPBC Act.

The purpose of the Bill is to allow for cost recovery for environmental impact assessments, including strategic assessments, under the EPBC Act, consistent with the Australian Government Cost Recovery Guidelines. The relevant fees will be specified in the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (the Regulations), except for fees in relation to assessment by an inquiry or strategic assessment, which will be made through a Ministerial determination. The Bill will also allow the Regulations to specify administrative requirements for applications, processes for payment, and for refunds, exemptions and waivers.

The Bill also allows for cost recovery for the assessment and approval of action management plans submitted after the Minister has granted an approval under the EPBC Act, and for the variation of those plans. The Bill achieves this by allowing a person to elect to submit a management plan for approval after the decision is made approving the action. The Regulations can then specify that a fee can be charged for the assessment and approval of the plan when it is submitted.

Action management plans are plans for managing the impacts of the action on a matter protected by a provision of Part 3 of the EPBC Act, such as a plan for conserving habitat of a species. The preparation of and approval of action management plans by the Minister is a common requirement of conditions of approval under the EPBC Act. Action management plans allow the Minister to have ongoing oversight of an action, and more flexibility to specify required environmental outcomes or management strategies as more data becomes available or new technologies develop for environmental management. By setting out a formal process for developing, submitting and varying action management plans, the amendments allow for cost recovery for activities associated with approving these plans.


FINANCIAL IMPACT STATEMENT

The estimated revenue from EPBC Act cost recovery is $7,776,907 in 2014–15. The revenue from cost recovery will be reconsidered in the 2015-16 Budget in light of the introduction of the one stop shop reforms. A Cost Recovery Impact Statement (CRIS) will be developed and published prior to the making of regulations implementing cost recovery.

REGULATORY IMPACT STATEMENT

The Office of Best Practice Regulation has advised (proposal ID 16598) that the amendments do not require a regulatory impact statement.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS – PART 3 HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) ACT 2011

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Environment Protection and Biodiversity Conservation Amendment (Cost Recovery) Bill 2014

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

 

Overview of the Bill

The purpose of the Bill is to allow for cost recovery for environmental impact assessments under the Environment Protection and Biodiversity Conservation Act (Cth) (EPBC Act). The Bill allows for Regulations to be made setting fees for activities under the EPBC Act, provide for fee exemptions, waivers and refunds. The Bill also allows for cost recovery for the assessment and approval of action management plans submitted after the Minister has granted an approval under the EPBC Act.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms. It allows for the imposition of a fee for service for activities under the EPBC Act.

 

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

Minister for the Environment, the Hon Greg Hunt MP

 


 

 

 

TABLE OF CONTENTS

 

Schedule 1    Cost recovery                                                                                                       1


                                                                    Schedule 1                      Cost recovery

Item 1 – After subsection 91(1)

1.1         Item 1 provides that as part of the written notice of the decision on the assessment approach provided under section 91 (Notice of decision on assessment approach), the Minister must advise the person proposing to take the action that they may also elect to submit an action management plan for approval after the decision is made approving the taking of the action. The election can be made at any time before the approval is granted. This provision ensures that the person proposing to take the action is aware that they could elect to provide the Minister with an action management plan following approval of their action, and enables the Regulations to specify a fee for the assessment of that plan post-approval. See items 5–11 below for more detail on action management plans.

Items 2–4

1.2         Items 2–4 amend the provisions of Part 8 relating to assessment of controlled actions so that the assessment of an action cannot continue if relevant fees have not been paid. This relates to the amendment made in item 19, which provides that time periods in the EPBC Act do not run if fees remain unpaid.

1.3         These amendments are necessary because the structure for payment of fees specified in the Regulations may include making fees payable in stages. For example, rather than having a single fee payable at the beginning of an assessment, the fees may be payable at different points in the statutory assessment process.

1.4         Various stages in the assessment process depend on the proponent taking particular actions, such as providing documents to the Minister. Usually when the proponent provides these documents, the assessment process automatically enters a new stage. The amendments in items 2–4 ensure that the assessment remains ‘paused’ if the person proposing to take the action has not paid any fees due at that point. Fees may be charged at these stages to cover administrative work done by the Department in ensuring that documentation meets the requirements of the EPBC Act.

 Items 2 and 3 – After subsection 95B(1) and after subsection 95B(3)

1.5         Item 2 inserts a new subsection into section 95B. Subsection 95B(1) currently requires the designated proponent to give the Minister a document that sets out information in relation to the relevant proposed action amended to take into account comments, and a summary of any comments received during the public comment period. If no comments are received, subsection 95B(3) requires the designated proponent to give the Minister a written statement to that effect.

1.6         Currently, subsection 95B(2) and subsection 95B(4) require the proponent to publish the relevant information about the action within 10 business days of giving the documents or statement to the Minister.

1.7         The new subsection 95B(1A) and subsection 95B(3A) will mean that the proponent cannot give the documents to the Minister if a fee which is due has not been paid. In other words, for the purposes of the EPBC Act, the proponent will not be taken to have ‘given’ the documents to the Minister until any relevant fee is paid.

Item 4 – After subsections 99(3) and 104(3)

1.8         For the purposes of assessment by Public Environment Report (PER) or Environmental Impact Statement (EIS), designated proponents must give a copy of the final PER or EIS to the Minister and a copy of any comments received during the public comment period.

1.9         Item 4 inserts a new subsection (3A) into sections 99 and 104. The new subsections 99(3A) and 104(3A) will mean that the proponent cannot give the documents to the Minister if a fee which is due has not been paid. In other words, for the purposes of the EPBC Act, the proponent will not be taken to have ‘given’ the documents to the Minister until any relevant fee is paid.

Items 5–11

1.10       Items 5–11 provide a process for a person to elect to submit an action management plan after the Minister has approved the taking of an action. The election to submit a plan will be able to be made at any time prior to approval being granted (see new section 132B, item 5 of Schedule 1), and the requirement to submit a plan would be imposed as a condition of approval. The approval holder will submit the action management plan with the fee (if any) required by the Regulations. If the proponent has already developed an action management plan, they will be able to submit all the required information as part of their assessment documentation in relation to managing any impacts of the proposed action before the approval is granted, and the election process will not be necessary.

Item 5 – After section 132A

1.11       Item 5 inserts a new section 132B into the EPBC Act, which will set out the process a person proposing to take the action must follow if they are to elect to submit an action management plan for approval. A person proposing to take an action will be able to make an election at any time before an approval is granted under section 133 (see subsection 132B(1)). However, once the Minister has granted an approval under section 133 the person will not be able to revoke the election (see subsection 132B(4)). If the person proposing to take the action elects to submit an action management plan it is likely that a condition will be attached to an approval requiring the preparation of an action management plan.

1.12       Subsection 132B(3) will clarify that if the person who made the election notifies the Minister that another person proposes to take the action, then up until a decision on approval of an action  under section 133 is made, that other person will be able to revoke the election made by the first person.

1.13       An election will need to be made in writing, and be given to the Minister before the Minister grants an approval under section 133 (see subsection 132B(2)).

Item 6 – Paragraph 134(3)(e)

1.14       Item 6 clarifies that a condition can be attached to an approval requiring the preparation of an action management plan under paragraph 134(3)(e) only where a person has made, or is taken to have made, an election under section 132B (inserted by item 5 above). It is intended that regulations made for the purpose of subsection 520(4A) (inserted by item 16 below) will require a fee to be paid at the time the action management plan is submitted for approval (rather than when a person makes an election under subsection 132B). Therefore if, when granting the approval or after the approval is given, the Minister determines that an action management plan is not required, the fee will not be payable.

1.15       Where a person has made, or is taken to have made, an election to submit an action management plan, the Minister will be able to attach a condition requiring submission of an action management plan to an approval. The Minister may also attach a condition requiring the implementation of the action management plan to the approval.

1.16       The Regulations will be able to provide that a fee applies where a person is taken to have made an election under subsection 143(1A) (inserted by item 10 below) agreeing to adding, varying and attaching a condition about an action management plan to an approval. If another person takes the action following approval of the action but prior to the action management plan being submitted then they will be responsible for paying the fee on submission.

Item 7 – At the end of subsection 134(3)

1.17       Item 7 is required as a consequence of Item 10 below. The note will direct the reader’s attention to subsection 143(1A) (inserted by item 10 below) in relation to when an election is taken to have been made where an approval holder agrees to a condition requiring an action management plan being added and attached to the approval.

Item 8 – After subsection 134(3C)

1.18       Item 8 inserts a new subsection 134(3D). Paragraph 134(3)(e) will enable the Minister to attach a condition to an approval requiring an action management plan to be submitted to the Minister for approval. Where such a condition is attached, subsection 134(3D) will enable the Minister to request the holder of the approval to provide additional information, where the Minister considers that there is not enough information to make a decision whether or not to approve an action management plan – for example where information that has been provided is inadequate to assess the action management plan, or where there are changes in the action. The Regulations will be able to provide for the imposition of additional fees where the Minister requests further information under this subsection. In these cases, additional departmental staff time is required to address these issues, resulting in additional costs.

Item 9 – After section 134

1.19       This item inserts a new section 134A into the EPBC Act, which will enable the Minister to publish the action management plan for public comment before it is approved (see subsection 134A(1)). Paragraph 134A(1)(b) will require the Minister to set a minimum of 11 business for members of the public to provide comments. The Regulations will also be able to provide for requirements in relation to the way the Minister publishes the plan and invitations (see subsection 134A(2)). This amendment ensures that, where appropriate – for example where there is significant public interest in matters included in the action management plan – the Minister will be able to seek public comment on the plan.

Item 10 – After subsection 143(1)

1.20       This item inserts new subsections 143(1A) and 143(1B) into the EPBC Act. Paragraph 143(1)(c) provides that the Minister may revoke, vary or add to any conditions attached to an approval given under section 133 where the holder of the approval agrees and the Minister is satisfied of various criteria. If the holder of the approval has made an election under section 132B (inserted by item 5 above), the Minister will be able to attach conditions to an approval requiring the submission and implementation of an action management plan.

1.21       Subsection 143(1A) will provide that if the holder of the approval agrees for their approval to be varied to require an action management plan to be submitted, then they are taken to make an election under section 132B. If the Minister varies a condition of an approval under paragraph 143(1)(c) to vary or add a condition requiring the submission of an action management plan for approval by the Minister, regulations made for the purposes of subsection 520(4A) (inserted by item 15 below) will be able to prescribe a fee payable by the holder of an approval for the assessment of the action management plan.

1.22       In addition, subsection 143(1B) will enable the holder of an approval to request that the Minister vary a condition attached to an approval. The approval holder will need to make the request in writing. Currently the EPBC Act only contemplates variations to conditions being made unilaterally by the Minister. In practice, variations may be prompted by requests from or information provided by approval holders. This provision will formalise this process, and enable the Regulations to provide for cost recovery for the assessment of a variation application.

 Item 11 – After section 143

1.23       This item inserts a new section 143A into the EPBC Act which provides for the variation of an action management plan. Under subsection 143A(1), a holder of an approval will at any time be able to apply to the Minister for a variation of an approved action management plan. The approval holder will need to make the application for a variation in writing, and also submit any fee payable and any information or documents required by the Regulations (see subsection 143A(2)). Once the Minister receives an application, the Minister will have the ability to request additional information be provided before making a decision (see subsection 143A(4)), if the Minister believes on reasonable grounds that the application does not include sufficient information. The Minister will be required to notify the holder of the approval in writing of his or her decision whether to approve the variation to the action management plan (see subsection 143A(5)).

1.24       Currently conditions requiring management plans provide a process for variation of the particular plan required by the condition. Any conditions of this type attached to current approvals will continue to apply. This provision will provide a generally applicable process for the variation of action management plans where an election has been made under s 132B (see item 5 above). Any variations to the plan would need to be consistent with the approval conditions.

Item 12 – Subsection 156F(3)

1.25       This item repeals subsection 156F(3) and substitutes it with a new subsection (3), which will set out the requirements for a notice being provided to the Minister under subsection 156F(1) where there is a change of person proposing to take an action. This section only applies before an approval is granted under section 133. Subsection 156F(3) will provide that a notice must include the information (if any) prescribed in the Regulations and be accompanied by the fee (if any) prescribed by the Regulations.

1.26       Requiring the notice to be accompanied by the fee prescribed in the Regulations will deter fee avoidance behaviour by persons who may otherwise be required to pay the appropriate fees. For example, the first person proposing to take the action may be exempt from paying the fees associated with assessing the proposal (see item 16 below which allows for the Regulations to specify waivers and exemptions). If that person then transfers their proposal to another person who would not be exempt from paying the fees, the amendments will ensure that the new person will be liable to pay all the fees associated with the assessment of the proposal as though that person had referred the proposal to the Minister in the first place. If this were not the case, a person who would otherwise have to pay fees could avoid doing so where the original person who made the referral was eligible for a waiver.

Item 13 – At the end of Part 11 of Chapter 4

1.27       This item inserts a new Division 7 (Miscellaneous) into Part 11 (Miscellaneous rules about assessments and approvals) of the EPBC Act to enable the Minister to determine the fees that may be charged for certain assessment processes.

1.28       Section 170CA will provide that the Minister may determine the amounts of fees to be charged, including the ways in which a fee is to be worked out, in relation to the following assessment approaches:

(a)       assessment by inquiry under Division 7 of Part 8; or

(b)       assessment by strategic assessment under Division 1 of Part 10.

1.29       It is anticipated that the fees for these types of assessments will be determined on a case-by-case basis, rather than specified in the Regulations. The fees the Minister will determine  appropriate for these assessment approaches will be dependent on the specifics of each individual project being assessed and related departmental resources necessary to undertake the assessment. The Minister cannot determine the fees and fix them in Regulations in advance, as for other assessment methods, due the wide variations in the actual resources required to conduct these assessments. Strategic assessments may also provide a general public benefit, and cost recovery therefore may not be appropriate in some cases.

1.30       Before making a determination, subsection 170CA(2) will require the Minister to consult with the person proposing to take the action, the designated proponent, or the person responsible for the policy, plan or program for strategic assessments (as the case requires), about the level of fee to be charged. This will provide the person proposing to take the action with greater certainty of costs prior to commencing the assessment, so that they can make amendments to their proposed action, or policy, plan or program, to avoid or mitigate the significance of the action’s impact on matters of national environmental significance and potentially reduce the cost of their assessment. Fees will be based on the level of departmental resourcing required to conduct the assessment of the action or the strategic assessment of the plan, policy or program.

1.31       Subsection 170CA(4) is intended assist readers and is merely a declaration of the law.  A determination made under subsection (1) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (Cth).

Item 14 – Subparagraph 496(1)(b)(iii)

1.32       Item 14 amends subparagraph 496(1)(b)(iii) as a consequence of item 19 below, to reflect the change in terminology from environmental management plan to action management plan.  

Item 15 – After Part 19

1.33       This item inserts a new Part 19A into the EPBC Act, which will allow for the reconsideration of fees. The fees to which this section will apply are those fees that are worked out by a person to whom a function or power is delegated under section 515 (Delegation) of the EPBC Act. As such, a fee determined by the Minister will not be subject to reconsideration under this section.

1.34       Subsection 514Y(2) will enable a person to apply to the Secretary to reconsider the way in which a method has been used to work out a fee prescribed by the Regulations under subsection 520(4C). As such, reconsideration will not be available where there is no discretion used in working out the fee. Nor will reconsideration be available to dispute the method determined to calculate the fee.

1.35       For example, fees may include a fixed and a variable component. The variable component of applicable fees may be calculated using a complexity matrix, varying depending on the complexity of an action. In this situation, a person who is dissatisfied with the way in which the complexity matrix was used to determine the fees will be able to apply to the Secretary to reconsider the method of that calculation. Conversely, the automatic imposition of standard or fixed fees on the happening of an event such as the making of an application will not involve any application of a method to work out a fee, as the liability to pay the fee arises solely from the Regulations. As such, section 514Y will not apply in this scenario.

1.36       A person will need to make a reconsideration application in the form prescribed in the Regulations and must set out the reasons for the application (see subsection 514Y(3)). The person will need to make the reconsideration application within 30 business days after the applicant is informed of the fee (see subsection 514Y(4)). The Department will inform the applicant of his or her rights under this section when providing notice of the fees payable.  As such, the 30 day period within which a request will need to be made will start from the day the applicant is informed of their obligation to pay a fee, not the day in which the fees are paid or become payable. A person may apply only once for reconsideration (subsection 514Y(5)).

1.37       Section 514YA will set out the process to be followed on receipt of an application for reconsideration of a fee. The Secretary must reconsider the way the method was used to work out the fee and decide to confirm the fee or to work out a new fee by using the method again (see subsection 514YA(1)). The Secretary would work out a new fee where the specified method was incorrectly applied to the particular action. The person undertaking the reconsideration must be the Secretary or a delegate of the Secretary who is an employee of the Department that was not involved in working out the disputed fee and be in a position senior to that of the person who initially worked out the fee (see subsection 514YA(2)). This provision has been included to ensure decision-making processes are transparent and to provide access to a fair and objective procedure for the internal reconsideration of decisions in relation to discretionary fees.

1.38       Once a decision has been made, the Secretary or delegate must give the applicant a written notice which states the outcome of the reconsideration and provides reasons for that outcome (see subsection 514YA(3)). The reconsideration must be undertaken within 30 business days of receipt of the application.

1.39       The provisions in Part 19A will operate as an internal merits review mechanism for those whose rights and interests are affected in relation to the aspects of the imposition of fees which involve some exercise of discretion.

1.40       However, the amendments do not provide for external merits review of the Secretary’s reconsideration decision. As discussed below, the method specified in the Regulations for calculating a fee will include clear criteria for assigning a level of complexity to the project. These criteria will be defined, and will be objective rather than discretionary criteria. For example, the complexity of a project would be higher the greater the number of different listed species impacted by the action, or the more components an action had. These are objective facts rather than matters left to the decision makers’ discretion. The internal review process allows for the correction of errors in the application of these criteria.

Item 16 – After subsection 520(4)

1.41       This item inserts new subsections 520(4A), 520(4B), 520(4C) into section 520 of the EPBC Act to enable cost recovery arrangements for selected regulatory activities under the EPBC Act and the Regulations.

1.42       Subsection 520(4A) will insert a head of power into the EPBC Act enabling the Regulations to prescribe fees that are payable for the services the Minister or Secretary provides in performing functions, or exercising powers, under the EPBC Act or Regulations. 

1.43       Subsection 520(4B) will provide that a fee prescribed by the Regulations is payable to the Commonwealth.  As such, any fees specified by the Regulations will be recoverable by the Commonwealth.

1.44       Paragraphs 520(4C)(a) to (c) will provide for specific matters which may be prescribed in the Regulations. The fees arising out of cost recovery will vary depending on the size and complexity of the project under consideration, as the departmental resources required to conduct a particular assessment will vary depending on these factors. The Regulations will be able to prescribe two or more fees for the same matter (paragraph 520(4C)(b)) and prescribe a method for working out a fee (paragraph 520(4C)(c)). In relation to paragraph 520(4C)(c), it is intended that the Regulations will include a ‘complexity matrix’ for environmental impact assessments, and the fees for these assessments will be determined on a case-by-case basis using that matrix.

1.45       Subparagraph 520(4C)(e)(i) will enable the Regulations made for the purposes of subsection 520(4A) to specify the way in which, and times at which, a fee is to be paid.

1.46       In this regard, it is anticipated that the department will provide the responsible person with an estimate of the maximum applicable assessment fees when the assessment decision or controlled action decision is made. Assessment fees will then be payable in stages prior to the commencement of each relevant stage of the assessment process. The stages of assessment will be specified in the Regulations.

1.47       Subparagraph 520(4C)(e)(ii) will enable the Regulations made for the purposes of subsection 520(4A) to specify the fees that must be paid, and by whom, in the event of a transfer under section 145B or a change of person proposing to take an action under section 156F. Where an approval is obtained by an entity with an exemption (the transferor), and is then transferred to another entity which is not eligible for an exemption (the transferee), the transferee may be required to pay all fees that would have been payable if the transferee had been the original applicant. It is anticipated that the transferee will be required to pay the difference between the fee paid by the transferor and the full fee, before the transfer can occur. This provision has been included in order to minimise any fee avoidance behaviours. An example of fee avoidance behaviour is a situation in which a small business claims an exemption for fees associated with an environmental impact assessment, but following the granting of approval for the relevant activity, transfers the approval to a larger entity with which it is affiliated, which would not have been eligible for an exemption if it were the original applicant.

1.48       Subparagraph 520(4C)(e)(iii) will enable the Regulations made for the purposes of subsection 520(4A) to specify the consequences of failure to pay a fee.

1.49       Subparagraph 520(4C)(e)(iv) will enable Regulations made for the purposes of subsection 520(4A) to set out the circumstances in which the Minister may waive a fee. The Minister will have the discretion to waive fees if he or she is satisfied as to certain matters, which will be specified in the Regulations.

1.50       Subparagraph 520(4C)(e)(v) will enable Regulations made for the purposes of subsection 520(4A) to specify the circumstances in which a person is exempt from paying a specified fee. It is intended that the Regulations may include a small business exemption provision for environmental impact assessments. It is anticipated that persons who meet a ‘small business’ test would be completely exempted from fees, regardless of the scale of the project or the costs the department will incur in conducting the assessment. The policy intention is that the exemption application would be submitted by the proponent at the same time as the referral is submitted. If a proponent did not meet the exemption criteria at the time of submitting a referral, but later became eligible during the assessment or approval process, they would notify the department of a change in circumstance and submit an exemption application related to any fees for the remainder of the assessment or approval.

1.51       Subparagraph 520(4C)(d)(vi) will enable Regulations made for the purposes of subsection 520(4A) to specify the circumstances in which a fee may be refunded, in whole or in part.

Item 17 – Subsection 520(5)

1.52       This item makes a consequential amendment to subsection 520(5) of the EPBC Act as a result of item 16.

Item 18 – After section 521

1.53       This item inserts a new section 521A into the EPBC Act, which will mean that timeframes in the EPBC Act do not run if all or part of a fee remains unpaid. Section 521A applies if a person has not paid all or part of a fee for service. In this situation:

(a)       the Minister or Secretary will not have to do a thing required or allowed by the EPBC Act. For example, if a fee remains unpaid, the Minister would not have to approve a draft EIS submitted to the Minister by the proponent under section 103. The Secretary would not have to begin preparing a recommendation report if otherwise required to do so by section 105.

(b)       where the EPBC Act requires or allows the Minister or Secretary to do something relating to the service within a particular period of time, where the period has not begun, any time period specified in the EPBC Act will not begin running until the fee is paid. For example, if a fee remains unpaid, the time period of 20 days for making a controlled action decision specified in subsection 75(5) would not begin running.

(c)       a time period specified in the EPBC Act which has started running will stop until the required fee is paid. This provision would be relevant where a fee stage occurs part way through a time period.

(i)         For example, if the assessment approach is assessment on referral information under Division 3A of Part 8, the Secretary has 30 days to prepare a recommendation report. If a person paid a fee at the start of the period, and another fee was payable after the public comment period required by section 93(3), at day 16, the 30 day ‘clock’ stops running until the further fee was paid. The clock would restart the day after the fee was paid (see new subsection 521A(2)), and this would restart the clock on day 16. The period would then run until day 30.

1.54       Subsection 521A(2) will make it clear that the day that the fee is paid is not to be counted in the relevant period. For example, if the fee was paid on Tuesday, the clock would not commence or recommence (as relevant) until Wednesday.

Item 19 – Section 528

1.55       Item 19 inserts a definition of action management plan into section 528 of the EPBC Act.  An approval may be subject to the approval holder submitting and implementing an action management plan. The action management plan is a plan for managing the impacts of the action on a matter protected by a Part 3 provision. Part 3 provisions concern matters of national environmental significance. The definition includes the example of a plan for conserving habitat of a species. This type of plan is not new, as a plan for managing impacts can currently be attached as a condition of an approval.

Item 20 – Application

1.56       The amendments made by items 2 to 5 and 12 to 19 of this Schedule apply in relation to a referral of a proposal to take an action that is received by the Minister on or after 14 May 2014 in respect of which a service is provided on or after this item commences. These amendments all relate to the charging of fees for services. Fees will only be applied in respect of services performed on or after the day this item commences in relation to a referral received by the Minister on or after 14 May 2014. Note that the provisions relating to strategic assessments and assessment by inquiry will commence on 1 July 2014, or on Royal Assent, whichever date is later.

1.57       For example, if a project has been referred after 14 May 2014 and is in the assessment phase following the introduction of cost recovery, only the fees and charges relating to the assessment after the introduction date of cost recovery will be payable. If a project is referred after the commencement of cost recovery, then all fees, including the referral fee, would apply. If a project was referred prior to the 14 May 2014, no fees will be payable at any stage.

1.58       The 14 May 2014 is the day on which the department confirmed publicly that cost recovery would proceed for environmental assessments under the EPBC Act. Extensive consultations were carried out with stakeholders in 2011–12 on cost recovery, and the Department’s website has flagged the future introduction of cost recovery since May 2012.

1.59       This provision ensures that no incentive is created to refer prior to commencement of cost recovery in order to avoid fees, but these amendments will not retrospectively impose fees. The fees will only apply in relation to decisions/processes that occur after the day this item commences and will therefore not involve retrospectivity because the service for which the fee will be imposed will be provided after the commencement of this item. 

1.60       The amendment made by item 1 (including the new definition in item 19), which is the requirement for the Minister to give notice that a person may elect to submit a management plan, will apply to all assessment approach decisions the Minister makes after the item commences.

1.61       The amendments made by items 6 to 11, 14 and 19 will apply in relation to an approval, whether granted before, on or after the day this item commences. These items concern conditions of an approval requiring an action management plan to be submitted and implemented. This will ensure that these provisions can apply to an approval already in existence at the time this item commences, or an action currently being assessed under the EPBC Act. However, approval holders will only be required to pay fees for services with respect to action management plans if the action was referred on or after 14 May 2014.

1.62       This will allow conditions imposed on approvals from the time this item commences to include action management plans, the variation of conditions attached to existing approvals to include management plans and a generic process for amending action management plans, regardless of when the action was referred and approved. This will ensure that Department can implement the same processes for all approvals, regardless of whether the approval holder must pay fees for those actions.